TMI Blog2024 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... bed under the provisions of Regulation 30A of IBBI (CIRP) Regulations, 2016 and Section 12A of IBC, 2016 and hold that withdrawal of CIRP was not correct as per Law. The impugned order dated 09.11.2022 is set aside. Appeal allowed. - [ Justice M. Venugopal ] Member ( Judicial ) And [ Ajai Das Mehrotra ] Member ( Technical ) For the Appellant : Mr. Vivek Kohli , Senior Advocate For Ms. Nishtha Grover , Advocate. For the Respondents : Mr. R. Sugumaran , Respondent No. 1 / Resolution Professional ( in person ) Mr. E. Om Prakash , Sr. Advocate For Mr. V. John Acquinas , Advocate , For R2 R3. JUDGMENT ( Hybrid Mode ) [ Per : Ajai Das Mehrotra, Member ( Technical ) ] 1. The present Appeal has been filed by Joinup Corporation, (hereinafter called Appellant) aggrieved by the impugned order dated 09.11.2022 of National Company Law Tribunal, Division Bench-1, Chennai in IA No. 1035/CHE/2022 and IA No. 1036/CHE/2022. 2. The facts of the case in brief are that Company Petition being No. 186 of 2015 was filed by the appellant before Madras High Court seeking winding up of Safire Machinery Company Private Limited (hereinafter called Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In its second meeting held on 10.06.2022 the IRP was authorised to file liquidation application which was filed and was numbered as IA No. 786/CHE/2022. 6. An application along with Form FA , along with settlement agreement dated 09.09.2022 was filed before NCLT seeking withdrawal of CIRP under 12A of IBC, 2016. 7. The settlement agreement dated 09.09.2022 was entered between Financial Creditor (Tamilnad Mercantile Bank Limited) and the corporate debtor and was placed before the 5th CoC meeting on 12.09.2022 and was approved by the CoC with 100% voting. As a consequence to the application under Section 12A, the Adjudicating Authority through the impugned order allowed withdrawal of CIRP and the main petition TCP-141/(IB)/2017 was treated as dismissed as withdrawn . The adjudicating authority has relied upon the order of the Hon ble Supreme Court in the case of Swiss Ribbons Private Limited Anr. Vs. Union of India Ors. (2019) 4 SCC 17 to hold that Section 12A application can be allowed even till liquidation proceedings. The IA for liquidation namely IA No. 786/CHE/2022 was also dismissed as infructuous. The Adjudicating Authority also allowed IA No. 1035/CHE/2022 and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of sub-regulation (1). (3) Where an application for withdrawal is under clause (a) of subregulation (1), the interim resolution professional shall submit the application to the Adjudicating Authority on behalf of the applicant, within three days of its receipt. (4) Where an application for withdrawal is under clause (b) of sub-regulation (1), the committee shall consider the application, within seven days of its receipt. (5) Where the application referred to in sub-regulation (4) is approved by the committee with ninety percent voting share, the resolution professional shall submit such application alongwith the approval of the committee, to the Adjudicating Authority on behalf of the applicant, within three days of such approval. (6) The Adjudicating Authority may, by order, approve the application submitted under sub-regulation (3) or (5). (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. The relevant portion of the reply of Respondent no.1 is reproduced below: To remit the matter back to Hon ble NCLT, Chennai as the Director and the Corporate Debtor have failed to honour the settlement agreement by not paying the Operational Creditor i.e; Joinup Corporation of Rs,1,76,64,788/- and failed to provide the Bank Guarantee to the Assistant Commissioner (Sales Tax) for Rs.1,35,37,021/- thereby, have failed in their commitment of settling the admitted claims of the Operation Creditors as per the agreement which is part of Form FA filed under Section 12A of the IBC, 2016 which was the basis of approval of 12A petition by the Hon ble NCLT, Chennai, in order to pursue the Liquidation Process as the CIRP period was over on 24.10.2022. 14. Respondent no.2 (Corporate Debtor) and Respondent no.3 (Ex-Director) have filed common reply and written statements. Their main submissions are that the Hon ble Supreme Court in the matter of Brilllant Alloys Pvt. Limited Vs. Mr. S. Ralagopal, has taken a view that Regulation 30A of IBBI (CIRP) Regulations, 2016 Is only Directive and not Declarative and therefore the submission of the appellant that the Form FA ought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarily made by the applicant who has initiated CIRP by filing application under Section 7, Section 9 or Section 10 of IBC, 2016. The provisions of the Code and IBBI (CIRP) Regulations, 2016 regarding this are sufficiently clear. 17. The respondents have relied upon the decision of the case Mr. K. Srinivas Krishna Vs. Shyam Arora Others cited supra wherein NCLAT, New Delhi has accepted withdrawal of CIRP where application was not signed by the applicant. 18. We have gone through the facts of the above case and are of the opinion that the said judgment applies to peculiar facts of the said case. In the said case the applicant had two claims of Rs.50,32,028/- and Rs.3,67,200/-. The second claim was admitted by the IRP and was fully paid. The first claim of Rs.50,32,028/- was not admitted by the IRP and it was contested by the applicant right up to Supreme Court. The NCLT, NCLAT and Hon ble Supreme Court had not accepted the said claim and thus it had become final that this amount is not payable to the applicant . The applicant, after receiving the full amount admissible as per law had refused to sign Form FA . However, in the present case, the appellant had objected to withd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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